"The Right to be Forgotten" is a concept that has gotten some traction in Europe, but is largely unknown in the United States. The right to be forgotten is still developing law, but it means that a person is allowed to request that certain information that is irrelevant or untimely be removed from the Internet.
The right to be forgotten is an old concept that developed out of French law, but a recent case helped solidify the concept. A man named Mario Costeja Gonzalez had a foreclosure in 1998. The local newspaper published a legal notice to attract buyers to the sale. In 2009, Mr. Gonzalez discovered that the newspaper digitized past editions of the newspaper and placed those online. Google indexed the newspaper's website, and when a person searched Google for Mr. Gonzalez's name, the foreclosure result was one of the first results to appear. Mr. Gonzalez filed suit against the newspaper for digitizing the edition, and against Google for ranking the link as one of the most relevant pieces of information about him.
The courts determined that the newspaper did no wrong in digitizing and publishing that edition of the paper. This was considered a historical event that occurred and the fact that it was now easier to search than it used to be didn't violate his privacy rights. However, the court ruled that Google was wrong to apply its algorithm and make this particular result one of the easiest to find. The court said that the information was irrelevant or untimely since it occurred many years earlier. In essence, Google wrongly determined that this was an important fact about Mr. Gonzalez and that it should appear early in the results.
This ruling enforced the European Right to be Forgotten. In Europe, cyber information essentially has an expiration date, albeit a fluid one. If the data isn't relevant or timely, a European citizen can request that it be removed from the search results. However, only European citizens currently have this right. A US citizen may not request that information be removed, because the US privacy laws do not currently support the same finding. This strikes many people as unusual. After all, Mr. Gonzalez cannot have his information removed from any searches done on Google in the US, so the information still exists. Likewise, a US citizen who later lives abroad cannot have his information removed and make it unavailable for searches.
This essentially creates a "split Internet" where the data is undermined. After all, while the facts are the same no matter who is performing the search, the results will be different. This seems to go against the entire point of the Internet for many- to allow free and open sharing throughout the world.
Currently, the US laws do not support removal of information. But should they? Many people argue that there should be a right to be forgotten. If you look at defamation law, traditionally, it was split into slander and libel. Slander was an untrue statement that was spoken and libel was an untrue statement that was printed. Libel was punished more harshly if proven because the information was likely to continue longer than if someone simply told another a lie about a third person. With the Internet, we have a situation in which the information is more or less never forgotten. And when search engines such as Google apply their own proprietary algorithm to determine that this is an important fact, the potential for damage is ongoing.
Many would argue there is a difference between an untrue statement and a true but embarrassing statement. This is a valid concern. The tort of "publication of private facts" addresses this concern. The publication of private facts is the publication of private facts that would offend a reasonable person, and that would not be of legitimate concern to the public. In other words, a person might be offended that a foreclosure from many years earlier was still showing up on the first page of their search results, and this isn't information that is a legitimate concern to the public. On the other hand, say a convicted sex offender wants their arrest record removed. This might reasonably offend them, but it is of legitimate concern to the public; the public would want to know whether their neighbor was convicted of a sex crime. The problem with using "publication of private facts" as a means for arguing that Google results should be removed is that the tort varies from state to state, and there is no uniform US law allowing removal across all states.
Until such laws are passed, there will be a patchwork of search results that are available in one area of the world but not another.
What are your thoughts? Should US citizens have the right to have embarrassing information removed? Should information have an expiration date? Should the information be available for all time- even long after the person concerned has passed away? Can such laws be enacted without running afoul of the First Amendment? Or should this be a corporate policy that companies such as Google adopt? Are we okay with companies deciding what information they decide is relevant or timely? All of these questions already exist and are debated on a daily basis, whether we realize it or not. Many people do not post things online or withdraw from social media because they are worried about it haunting them decades later. Others take the opposite approach and post too much because they figure there is nothing they can do about it anyway.